When parents are able to settle custody or visiting disputes privately between themselves, they are free to rely upon any criteria of their own choosing for determining the outcome. Although it has not always been so, if parents stipulate to mutual agreements regarding their children, judges in many jurisdictions will automatically approve their custody or parenting plan. The trend in judicial practice in the past decade has been to de-emphasize the role of the state as "big brother," passing judgment on privately ordered parenting arrangements simply because a divorce has occurred.67 In states requiring mediation, written parenting plans, or other educational interventions, judges more often limit their scrutiny to contested parenting matters.67

Parents who cannot agree on custody and access become subject to the legal criteria for determining custody outcomes that have been adopted by their state's legislature and related case law. The most common standard is the best interests of the child, a gender-neutral referent which allows mothers and fathers to compete for custody on an equal footing. In a few states the courts are directed to consider the primary caretaker standard as the major factor in determining custody. A third standard is the child's preference for custody, if the child is of sufficient age and intelligence to make a judgment.

The Best Interests Standard

The Uniform Marriage and Divorce Act, presented by the commissioners on uniform state laws, defines the child's best interests as a composite of the following factors: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school, and community; (5) the mental and physical health of all individuals involved. The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.82 This standard is simple to state and difficult to apply. There is not full consensus among legal, judicial, or mental health communities regarding what the child's best interests are as they apply to a custody dispute. There are advantages and disadvantages to utilizing this criterion as the benchmark for custody decision making. The most important advantage of relying upon a determination of the child's best interests is that decision making is centered on children's developmental and psychological needs, rather than on parental demands, societal stereotypes, or legal tradition. The best interests standard indicated a willingness on the part of the legal system to consider custody outcomes on a case-by-case basis, rather than adjudicating children as a class or homogeneous grouping.4 To those concerned with each individual child's psychological and developmental well-being, this more discerning, individuated approach was highly appropriate.

A second advantage of the best interests standard is that it is potentially responsive to changing social or legal trends outside custody law. The best interests standard enabled fathers who had engaged in significant care-taking roles in the marriage to have an expanded role in the child's life after divorce, and some fathers were appropriately awarded custody who would not have been considered under the maternal presumption rule. Further, the advances made by the physically handicapped or homosexuals in federal legislation have been reflected in a growing number of custody decisions awarding physical custody to disabled or gay parents, based on a consideration of the child's emotional ties and needs.

The core problem of the best interests standard arises from lack of uniformity regarding which interests to consider, how to define and weigh the different factors, and how to account for children's changing developmental needs over time.83 The effect of such unclarity is that attorneys, court workers, and custody evaluators may consider and emphasize different factors or interpret the same concepts, such as continuity or stability, in diametrically opposed ways designed to benefit the parent they represent or favor. Without clear guidelines, judges often make these difficult decisions by relying upon their own subjective value judgments and life experiences, resulting in unevenness in outcomes across or within jurisdictions.4

To make the decision-making process more uniform, a number of states have adopted provisions listing multiple criteria to be considered in determining the child's best interests. Michigan, for example, adopted 11 such criteria, including the parents' mental and physical health, and the love and emotional ties existing between parents and child.83 With the wider adoption of such criteria, there is likely to be more uniformity in outcomes and less uncertainty in bargaining. Proponents of the case-by-case approach argue that, with good criteria, appropriate information about the family gathered by an impartial evaluator, and reliable and accessible social science and developmental research, judges can make appropriate judgments which respect children's needs.

Some feminist critics argue that the best interests standard disadvantages women by discounting the importance of primary care-taking usually undertaken by women,11,36 reduces women's bargaining power,11 complicates divorce negotiations, and encourages unnecessary litigation because of the uncertainty of outcome.4,11 The best interests standard does not inherently discount the importance of primary caretaking. Indeed, in many states, the primary caretaking role is one of the criteria to be considered in determining custody. It does, however, expand beyond primary caretaking functions to include a consideration of the child's age, gender, emotional ties to each parent, parental adjustment, and the quality and meaning to the child of each parent-child relationship. In this sense, the best interests standard dilutes the presumption that the primary caretaker shall continue exclusively in that role after divorce, and thus it receives the support of fathers' rights groups and many professionals who believe there should be continuity in the relationship between both parents and child after divorce, unless found to be inappropriate.84 Recent research indicates that women do not appear to be disadvantaged in the bargaining process by the best interests standard,35,50 that is, the uncertainty of custody outcomes does not cause women to trade off child support to avoid risk. The existence of mandatory child support guidelines reduces further such potential bargaining inequities. Earlier in this century, the maternal presumption rule undoubtedly deterred legal action, even when maternal custody was perceived to be deleterious to children. The larger philosophical question is whether one favors an approach that focuses on children's interests or an approach that favors greater simplicity and efficiency in the legal system and gender-linked outcomes. In states relying on the best interests standard, child-focused, court-connected interventions such as mediation reduce litigation time, expense, and conflict in custody disputes.34,58,60,85

The Primary Caretaker Standard

At the urging of some feminist groups, several states (for example, Minnesota, Washington, and West Virginia) have adopted language which favors the primary caretaker of the child during the marriage in determining contested custody outcomes. While the concept of the primary caretaker is technically gender neutral, there are many who perceive this approach as a return to a disguised maternal preference standard. Feminist critics acknowledge that the primary caretaker standard is a mechanism for protecting mothers' greater interest in retaining custody.86 Some feminists also claim that the primary caretaker standard is better for young children and protects the child's primary attachment to the mother.11,12 If divorce occurs during the child's first three years, the child has been cared for almost exclusively by the mother, and a healthy attachment is in evidence, this argument may be compelling.

Opponents of the primary caretaker standard cite developmental research which demonstrates the child's strong attachments to both parents in the first year of life26 and note that research suggests at best a weak preference for a primary caretaker standard for children under the age of five.87 No empirical evidence supports the distinction between primary and secondary caretaker after age five, as children's greatly increased social, cognitive, and emotional maturity creates changes in the meaning of attachments and parent-child relationships to the child.87

The primary caretaker is defined by the parental activities undertaken during marriage, including which parent spent the most time preparing meals, bathing and dressing, purchasing clothes, obtaining medical care, putting the child to bed, disciplining, educating, and teaching elementary skills such as reading. While fathers' participation in family care has increased,27 it is well documented that, in most families, women still spend more time than men performing physical caretaking tasks, even when both parents are employed.8,25 In the primary caretaker proposals advanced by some feminists, there is little, if any, credit given for the activities and interactions more typically undertaken by men, including playing, encouraging interest in sports, coaching teams, providing intellectual stimulation and homework assistance—activities that also have real and symbolic meaning to children.8,23,26 Further, no credit is given for earning income to support the family and its activities, despite the fact that mothers and fathers see this during marriage as fathers' most important function on behalf of the family.88 The issue is further clouded by evidence that many women say they want their husbands to be more involved in child-rearing activities, yet exclude them from these activities in the marriage or criticize fathers' parenting efforts as a means of retaining power and control in their perceived domain.89

The most serious problem with use of the primary caretaker standard is that it ignores the quality of the relationship between the child and the primary caretaker in favor of counting hours and rewarding many repetitive, concrete behaviors. Indeed, the most important emotional and interactive behaviors promoting children's development and psychological, social, and academic adjustment, such as love, acceptance, respect, encouragement of autonomy, learning, and self-esteem, moral guidance, and absence of abusive interactions, are not considered. A second problem is that the primary caretaker standard disadvantages men, who are essentially punished after divorce for being the primary wage earner, even if their caretaking activities have been considerable.

A third problem is that the psychological adjustment of the primary caretaker is not taken into consideration, despite evidence that it is a central factor in the post-divorce adjustment of children.45,90 Whether male or female, primary caretakers range from being abusive, neglectful, and emotionally disturbed to being the most stable and nurturing of parents. In relying upon the primary caretaker standard, the child's core interests may be dismissed in custody decisions. It is certainly appropriate, however, in determining the child's best interests, to consider the range and quality of each parent's care, activities, and interactions with the child during the marriage.

The Child's Preference

In many states, the child's preference is either given great weight or is determinative in a custody dispute, if the child is deemed to be of sufficient age and capacity to form an intelligent opinion. While popular belief is that the court will accord great weight to the preference of children over the age of 14, statutes are not specific in this regard, and judges may include the reasoned arguments of younger children in their deliberations as well.62 No body of legal literature exists regarding children's wishes, primarily because the courts have focused historically on parental rights rather than on children's rights or interests.62 As a result, there is no uniformity regarding how children's preferences are to be considered and weighted. Some judges rely upon custody evaluators and children's counsel to present children's preferences directly to the court and do not interview children themselves. Other judges believe that judicial interviews with older children and adolescents humanize the process and provide the judge with a better "feel" for the case.91 When judges do interview children in chambers, they must consider whether the session is confidential or if a court reporter is to be present and whether they have adequate interview skills to elicit reliable and sufficient information from children who may be anxious and reticent to be forthcoming in a formal, adversarial setting.65